Appellate Judges Ask Pointed Questions about ObamaCare


The Fifth Circuit Court of Appeals heard oral arguments on July 9 regarding the decision holding all of the Affordable Care Act (ACA or “ObamaCare”) unconstitutional, which had been rendered by federal District Judge Reed O’Connor.

The challenge is pursued by Texas, 17 other states, and two individual plaintiffs who claimed to be harmed by the ACA individual mandate to buy ACA-compliant insurance. Since Congress reduced the penalty for noncompliance—called a tax by the U.S. Supreme Court—to zero, plaintiffs argued that the Supreme Court’s rationale for calling ACA constitutional was gone.

If people did not have a “choice” to buy insurance or pay a tax, they were left with an unconstitutional command to buy a product they did not want. And since ACA architects and Congress considered the mandate an essential part of the law, the whole structure arguably collapses without it.

The U.S. Department of Justice declined to defend the constitutionality of the law. So, the two sides of the case were argued by the plaintiffs and the intervenors. The latter were states led by California, along with the U.S. House of Representatives.

Interesting questions that the Judges raised included:

  • Is a person free to disregard a law if not forced to pay a penalty for disobeying?
  • The law does say “shall” buy insurance—and persons exempted from the tax at the outset were not excluded from the command.
  • How can the state intervenors claim to have standing to defend a federal law, especially while asserting that the plaintiffs did not have standing to complain about its harms?
  • Where was the U.S. Senate?
  • Why hadn’t Congress repaired the constitutional deficiencies in the 7 months since Judge O’Connor ruled, or passed a law declaring that provisions such as requiring calorie information on restaurant menus were severable. Were the courts supposed to be “taxidermists” to repair legislation?
  • How was the court to determine congressional intent other than by reading the law? And which Congress’s intent counts? The one that passed the law, the one that passed the tax cut, or the one we have now?
  • How could the Court’s ruling be limited so as to grant relief to the plaintiffs while not affecting the intervenor states?

The tenor of the questions suggested that two of the judges might uphold the lower court’s ruling, at least in part.

The Association of American Physicians and Surgeons filed an amicus brief supporting the plaintiffs and raising a Tenth Amendment argument about how ACA denies Americans the choice of buying affordable insurance.       

The Association of American Physicians and Surgeons (AAPS) is a national organization representing physicians in all specialties, founded in 1943. Its motto is “omnia pro aegroto,” or “all for the patient.”